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2015
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[2015] ZAGPJHC 23
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Tuge v S (A268/2014) [2015] ZAGPJHC 23 (9 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE GAUTENG HIGH
COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE NO: A268/2014
DATE: 09 FEBRUARY 2015
In the matter between
LEVY OUPA
TUGE
..........................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
J U D G M E N T
VAN OOSTEN J
[1] The appellant was convicted in the
Regional Court sitting in Protea, Soweto of robbery with aggravating
circumstances arising
out of a hi-jacking incident. He was sentenced
to 15 years’ imprisonment. The appeal is directed against
sentence only and
is with leave of the court a quo.
[2] The hi-jacking incident occurred on
22 April 2012, in the early morning. The complainant, who was 66
years old, was in his Mercedes
Benz vehicle, at home intending to go
somewhere. He had just started the vehicle in the garage when the
appellant opened the door
on the driver’s side and started
assaulting him with a firearm. He was struck in the ribs and on the
head. The appellant
in addition was armed with a jungle knife with
which he stabbed the complainant in the waist. He furthermore hit him
with fists
and pulled the complainant out of the vehicle. The
appellant’s cohort came around the vehicle and joined him in
kicking the
complainant who had removed the keys from the vehicle and
was lying on the floor. The appellant searched the complainant and
took
his wrist watch, cell phone, bank card, bracelet, necklace and
all the money he had in his possession, which was R150. They got
into
the vehicle, disengaged the gears and free wheeled it forward where
it collided with a wall of the house as the steering was
locked. The
appellant and his cohort fled the scene and neighbours and family
members shortly thereafter arrived to assist the
complainant. The
complainant sustained broken ribs and open wounds on left hand, above
the left eye, on the hip and on the inside
of his mouth. He was
treated at hospital and discharged.
[3] The appellant and his cohort were
no strangers to the complainant: he had worked with the appellant’s
brother for a very
long time. The appellant raised an alibi which was
rightly rejected as false by the Regional Magistrate.
[4] In the consideration of an
appropriate sentence the Regional Magistrate reasoned that the
circumstances of this case justified
a sentence of 18 years’
imprisonment which was ‘the normal sentence’ that he
would have imposed. In view however,
of the appellant’s age (he
was 62 years old at the time of sentencing), the absence of previous
convictions and a period
of 14 months awaiting trial in custody, a
lesser sentence of 15 years’ imprisonment was imposed.
[5] It does not bear repetition that
hi-jacking of vehicles often accompanied with violence, as in this
case, is rife. The crime
the appellant has been convicted of is
extremely serious. The appellant was armed with a firearm and a
knife, he acted in cohort
with another and subjected the complainant
to the humiliation of serious and gratuitous violence. The
appellant’s greed was
not satisfied until after he had robbed
the complainant of his personal items. In S v Khambule 2001(1) SA 501
(SCA), the following
was said concerning sentence in hi-jacking
cases:
‘The commission of this offence
had become so common, especially in and around our large cities, that
innocent men and women
used the roads with great fear and anxiety.
The brutal acts of robbers caused enormous damage to our country and
cast a dark shadow
over the confidence of a community in policing,
prosecution and administration of justice. An indication of the
seriousness with
which the Legislature viewed this sort of conduct
appeared from the fact that a minimum sentence of 15 years'
imprisonment for
robbery with aggravating circumstances and for
robbery of a motor vehicle was prescribed in s 51(1) read together
with Part 11
of Schedule 2 of the Criminal Law Amendment Act 105
of1997, even for a first offender....’
[6] It is trite that sentencing remains
pre-eminently within the discretion of the sentencing court. In
Mokela v The State
2012 (1) SACR 431
(SCA) para 9, Bosielo JA put it
thus:
‘This salutary principle implies
that the appeal court does not enjoy carte blanche to interfere with
sentences which have
been properly imposed by a sentencing court. In
my view, this includes the terms and conditions imposed by a
sentencing court on
how or when the sentence is to be served. The
limited circumstances under which an appeal court can interfere with
the sentence
imposed by a sentencing court have been distilled and
set out in many judgments of this Court. See S v Pieters
1987 (3) SA
717
(A) at 727F-H; S v Malgas
2001 (1) SACR 469
(SCA) para 12;
Director of Public Prosecutions v Mngoma
2010 (1) SACR 427
(SCA) para
11; and S v Le Roux & others
2010 (2) SACR 11
(SCA) at 26b-d.’
[7] I am unable to find any
misdirections in the sentence imposed. In my view, the aggravating
factors far outweigh the mitigating
factors. When the nature of the
crime committed, personal circumstances of the appellants, interest
of society and the mitigating
and aggravating circumstances are taken
into account, I am of the view that a period of 15 years’
imprisonment is fair in
the circumstances and proportionate to the
offence the appellant has been convicted of.
[8] In the result the appeal is
dismissed.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
K SATCHWELL
JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPELLANT ADV M
BOTHA
COUNSEL FOR THE RESPONDENT ADV JG
WASSERMAN
DATE OF HEARING 9 FEBRUARY 2015
DATE OF JUDGMENT 9 FEBRUARY 2015